IN THE CASE OF:	

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090016367 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, he be paid disability separation pay.

2.  The applicant states the following:

* He never received his separation pay when he was discharged
* He inquired about his separation pay for two years and was told the 
computer showed it as a debt
* His income tax was taken and he filed bankruptcy to have this action 
stopped
* He was told he owed money to the military when he was discharged but 
his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows money was owed to him 

3.  The applicant provides a copy of his 7 April 1996 DD Form 214 in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 21 January 1988 and was released from active duty on 7 October 1991 by reason of early separation to further his education.  He served in the Army National Guard from 8 October 1991 to 1 October 1992.  

3.  The applicant enlisted in the Regular Army again on 28 July 1994.  

4.  The applicant was evaluated by a Medical Evaluation Board (MEB) and was diagnosed as having asthma (mild severity).  He was referred to a Physical Evaluation Board (PEB).  

5.  An informal PEB found the applicant unfit for military service and recommended he be separated from the service with a combined disability rating of zero percent with severance pay.  

6.  The applicant was discharged on 7 April 1996 under the provisions of Army Regulation 635-40, paragraph 4-24b(3) by reason of physical disability with entitlement to severance pay.  

7.  Item 18 (Remarks) on his 7 April 1996 DD Form 214 shows the entry “DISABILITY SEVERANCE PAY -- $13,542.00.”

8.  In a 25 March 2010 email, DFAS informed a staff member that the applicant’s Master Military Pay Account (MMPA) history shows he received $5,210.40 (gross amount) disability severance pay.  The net amount of disability severance pay was $3,751.48 (less $1,458.91 Federal income tax withheld).  

9.  In an 8 April 2010 email, DFAS informed a staff member that the applicant was discharged [1996] with a $15,579.82 debt.  His service record does not indicate the reason for this debt.  DFAS also stated the applicant received two checks for $9,953.41 each and one of the checks was returned.  The debt was reduced to $5,627.41 due to the returned check.  

10.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-24b(3) lists separation for physical disability with severance pay.

11.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

12.  Army Regulation 635-5 establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 18 is used for entries required by Headquarters, Department of the Army for which a separate block is not available and for completing entries that are too long for their blocks.  At a later date, a message was issued to provide guidance for the separation pay/readjustment/severance pay (disability or non-disability) to be annotated on the DD Form 214 and DD Form 215 (Correction to DD Form 214).  This message states that when a Soldier receives separation, readjustment, severance pay (disability or non-disability), the “Gross” (not NET) amount will be requested from Finance and the gross amount of the applicable pay will be entered in item 18 on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he never received his separation pay when he was discharged.  However, the applicant’s MMPA history from DFAS verifies he received $5,210.40 (gross amount) disability severance pay.  

2.  The applicant’s contention that he inquired about his separation pay for two years and was told the computer showed it as a debt is acknowledged.  The applicant’s pay records at DFAS confirm he had a $15,579.82 debt at the time of his discharge.  

3.  The evidence of record confirms the applicant owed money to the military when he was discharged.  Records do not confirm any additional money (other than his disability severance pay) was owed to him.  

4.  The applicant’s 7 April 1996 DD Form 214 reflects his disability severance pay amount was $13,542.00.  However, his pay records at DFAS confirm he was entitled to $5,210.40 (gross amount) disability severance pay.  Therefore, it would be appropriate to amend item 18 on the applicant's 7 April 1996 DD Form 214 to show his disability severance pay amount as $5,210.40.

5.  The applicant has not provided sufficient evidence which confirms he did not receive his disability severance pay.  However, since the available evidence indicates he had a $15,579.82 debt at the time of his discharge, it is reasonable to presume that his disability severance pay was withheld as a partial repayment of that debt.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends the 7 April 1996 DD Form 214 of the individual concerned be corrected by:

	a.  deleting the entry "DISABILITY SEVERANCE PAY - - $13542.00" from item 18 

	b.  adding the entry "DISABILITY SEVERANCE PAY - - $"$5,210.40” to item 18 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to paying him disability separation pay.  




      _______ _  X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20090016367





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ABCMR Record of Proceedings (cont)                                         AR20090016367



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